State v. Richmond

• Decision Date: 26 May 1910
• Citation: 228 Mo. 362,128 S.W. 744
• Parties: STATE v. RICHMOND.
• Court: Missouri Supreme Court

128 S.W. 744

228 Mo. 362

STATE v. RICHMOND.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. LARCENY (§ 75) — INSTRUCTION — DEFINITION OF OFFENSE.

An instruction which requires the jury to find that defendant took, stole, and carried away the property in question implies that it must have been done without the owner's consent, and is sufficient without an express statement to that effect.

2. LARCENY (§ 1)—MEANING OF "STEAL."

The word "steal" has a uniform significance, and in common as well as legal parlance means the felonious taking and carrying away of the personal goods of another, and in a criminal statute, when unqualified by the context, signifies a taking which at common law would have been deemed felonious, and imports the common-law offense of larceny.

For other definitions, see Words and Phrases, vol. 7, pp. 6651-6654; vol. 8, p. 7804.]

3. LARCENY (§ 71)—INSTRUCTIONS—DEFINITION OF OFFENSE.

An instruction, authorizing a conviction if defendant took, stole, and carried away property in question with intent to convert it to his own use, is insufficient in not requiring the jury to find that he feloniously took, stole, and carried it away, and that he did so with a felonious intent.

Appeal from Circuit Court, Carter County. John Richmond was convicted of larceny, and he appeals. Reversed.

Stuart L. Clark, for appellant. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

GANTT, P. J.

On the 18th of August, 1909 the prosecuting attorney of Carter county filed in the office of the clerk of the circuit court of said county an information charging the defendant with larceny of a certain roan mare, the property of Steve Southner. At the September term, 1909, of the said court, the defendant was duly arraigned and entered his plea of not guilty and was put upon his trial before a jury duly impaneled, sworn, and charged, and was convicted and his punishment assessed at three years in the penitentiary. In due time he filed his motion for a new trial, which was by the court overruled, and he was sentenced in accordance with the verdict, and from that sentence he has appealed to this court.

The Attorney General makes a point that the bill of exceptions cannot be considered because the same is not properly identified and authenticated. Upon an inspection thereof we think the bill of exceptions is properly authenticated, the record proper shows the filing of the same, and, while the transcript is inartistically made up, we are of the opinion that it sufficiently shows that it is the bill of exceptions taken and filed by the defendant in this case in accordance with the orders of the court.

No question is raised as to the sufficiency of the information or the arraignment or sentence, and the two errors assigned for reversal are that the first instruction given on behalf of the state failed to properly define the crime of larceny, and that there was no evidence to show that the property was taken without the consent of the owner. The instruction of which the defendant complains is in these words: "If you find and believe from all the facts and circumstances in evidence in this case that this defendant at any time about the 16th day of June, 1909, in Carter county, Mo., did take, steal, and carry away, with the intent to convert to his own use, a mare belonging to Steve Southner, then you should find the defendant guilty as charged and assess his punishment at imprisonment in the penitentiary for a term not less than two nor more than seven years." The...